Re: 7/8/03 - [Asser vs. Rea et al] Memorandum of Points and Authorities in Opposition to Terra Nova's Motion to Strike and for Sanctions
OLIVIER L.F. ASSER
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
OLIVIER L. F. ASSER,
Plaintiff,
v.
CHRISTOPHER REA, PHILIP BERBER, TRADING PLACES, INC., CYBERTRADER, INC., THE CHARLES SCHWAB CORP., MANHATTAN BEACH TRADING, INC., TERRA NOVA TRADING, LLC AND DOES 1-10,
Defendants.
Case No. 413497
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO TERRA NOVA’S MOTION TO STRIKE AND FOR SANCTIONS
Date: August 1, 2003
Time: 9:30 a.m.
Dept. 301
Trial Date: None Set
I. Introduction
The motion filed by Defendant Terra Nova Trading, LLC (“Terra Nova”) to strike the amended complaint and for sanctions is frivolous in the extreme: as Terra Nova in its own brief concedes, no amended complaint has been filed in this action and there is therefore nothing to strike. The motion to have Plaintiff sanctioned is not only likewise frivolous, but furthermore is made in bad faith. It is designed to harass and intimidate Plaintiff, now that he is pursuing his claims in propria persona. Indeed, the Court should not only not sanction Plaintiff; it should now sanction Terra Nova and its attorneys for filing the motion. Furthermore, contrary to the misleading statements made in the motion, the Court has jurisdiction over the other defendants – and the original Complaint specifically provides for amendments, so that Plaintiff might name additional defendants, i.e. “DOES 1-10.” Now that certain of the defendants have raised this issue, Plaintiff requests the Court rule on whether he is indeed permitted to amend the Complaint to name and serve the DOE defendants in this action at this time, thereby saving him the considerable time and expense of filing a separate action against those defendants in this same Court. If the Court subsequently orders that the stay should extend to those Individual Defendants, then Plaintiff respectfully requests that, in the event the original stay is reversed by the Court of Appeal, then the stay of proceedings against the additional Individual Defendants be lifted as well.
II. Statement of Facts
The original Complaint filed on October 11, 2002 provides:
1. The true names and capacities of other defendants sued herein as DOES 1-10, inclusive, are currently unknown to plaintiff, who therefore sues such defendants by such fictitious names under Code of Civil Procedure § 474. Plaintiff believes each DOE to be an additional Brokerage Defendant. Each of the defendants designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to herein. Plaintiff will seek leave of Court to amend this Complaint to reflect the true names and capacities of the defendants designated herein as DOES when such identities become known.
Verified Complaint for Damages and Equitable Relief (October 11, 2002) 23.
Therefore, per the provisions of his original Complaint, Plaintiff sought to name additional defendants, in this case Steven Demarest, Ross Ditlove and Gerald Putnam, all of whom, Plaintiff has learned, were intimately involved in every aspect of the kickback scheme alleged in the Complaint, and were personally unjustly enriched thereby. The amended complaint was on June 2, 2003 rejected by the Court on the basis that an answer to the Complaint had already been filed on December 30, 2002, and California Code of Civil Procedure §472 prevented the filing of an amended complaint absent the order of the Court. Plaintiff was so informed by the Deputy Clerk, via letter sent June 3, which returned to Plaintiff the amended complaint in its entirety. Therefore, the amended complaint is not a part of the record.
The March 20 order of the Court to compel arbitration of Plaintiff’s claims against Terra Nova and to stay further proceedings is currently pending review by the Court of Appeal, Case No. A102731, Division Three. Plaintiff filed a Petition for Writ of Mandate seeking to have this order reversed. The Court of Appeal, though not required to do so under California Rules of Court - except in the event the writ petition may have merit - requested Terra Nova file a brief in opposition, which it did on June 17. Plaintiff understands a decision in this matter to be pending.
Additionally, the other order compelling arbitration and the two orders to quash are also pending review by the Court of Appeal, Cases A102735, A102601 and A102812.
The defendants have at no time commenced NASD arbitration of Plaintiff’s claims. Plaintiff has no indication thus far that this is Terra Nova’s intent – save their original motion to compel arbitration, which to date successfully have removed Plaintiff’s claims against the Defendant from this Court.
III. Argument
In its motion, Terra Nova refers to California Code of Civil Procedure §128.5. In review, this section reads:
128.5. Expenses for frivolous action, bad faith or delay; Punitive damages
(a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.
(b) For purposes of this section:
(1) "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute "actions or tactics" for purposes of this section.
(2) "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.
First of all, Plaintiff did not serve the amended complaint on the additional Individual Defendants. Second, the filing of an amended complaint naming additional defendants, where the original Complaint specifically calls for precisely such a step, can hardly be termed frivolous – especially as defined above: “totally without merit” and “for the sole purpose of harassing an opposing party.” As the Complaint contains this provision, seeking an amendment can hardly be termed “totally without merit.” And, considering the forewarning the Defendant had, this step should come as no surprise. Furthermore, how can the Defendant claim this amendment would be designed solely to harass it, or somehow to cause a delay in the proceedings, when Plaintiff seeks to name other defendants in this action? Indeed, Terra Nova itself concedes that “None of these changes affect the substance of the claims made against Terra Nova.” Terra Nova Memo p.3, at fn.2. They were not intended to change the substance of the allegations against Terra Nova; rather, as the Complaint specifically provides, they were intended to identify the DOE defendants by name.
IV. Conclusion
Terra Nova’s motion to strike that which is not a part of the record is absurd. It should be denied. Its motion to have Plaintiff sanctioned for taking a step enumerated in the original Complaint is no less. It should likewise be denied – and Terra Nova and its counsel should themselves be sanctioned for filing the instant motion, which indeed is designed to harass and intimidate Plaintiff.
DATED: July 8, 2003 _____________________________
Olivier L. F. Asser
Plaintiff in propria persona
Message 19105550 |
